Everest Nanim v. State ( 2004 )

of Nanim’s trial. See, e.g., Shannon v. State, 942 S.W.2d 591, 597-98 (Tex. Crim. App. 1996)
(prosecutor’s comment that defendant was sociopath held cured by prompt instruction to disregard);
Norris v. State, 902 S.W.2d 428, 442-43 (Tex. Crim. App. 1995) (prompt instruction cured
prosecution’s use of word “extortion” in reference to defense counsel’s jury argument in capital
case). The court’s curative instruction is presumed to remove from the jury’s consideration any
evidence of the plea negotiations. See Bauder, 921 S.W.2d at 700. We overrule Nanim’s point of
error as it pertains to the prosecutor’s first comment.
We conclude that the prosecutor’s second and third comments complained about by
Nanim also do not require reversal. Among the well-established categories for proper jury argument
is a plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). A proper
plea for law enforcement may take many forms, one of which is to argue the relationship between
the jury’s verdict and the deterrence of crime in general. Id. Appellate courts have upheld
arguments that probation is an inappropriate punishment for certain offenses. Lugo v. State, 732
S.W.2d 662, 664 (Tex. App.—Corpus Christi 1987, no pet.). Here, the prosecutor told the jury that,
in his opinion, Nanim had demonstrated a lack of respect for the judicial system and was a poor
candidate for probation. The State contends this was a proper plea for law enforcement. In making
that argument, the prosecutor explained to the jury how his reasoning had changed over the course
of the trial, including his initial satisfaction with the time Nanim had previously spent in jail and his
subsequent change of opinion after evaluating the evidence presented at trial. The error, if any, was
followed immediately by the court’s instruction to disregard.
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CONCLUSION
We fail to find that the State’s references to the time Nanim served in jail and plea-
bargain negotiations, promptly corrected by the trial court, were so inflammatory that their
prejudicial effect was not reasonably cured by judicial instruction to disregard. Because we have
found the curative instruction to be effective, it is not necessary to decide whether the argument had
a substantial and injurious effect or influence on the jury’s verdict. We hold that the trial court did
not err in denying the motion for mistrial and affirm the trial court’s judgment.
_____________________________________________
Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Affirmed
Filed: March 18, 2004
Do Not Publish
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